News: Paul Reiche and Fred Ford want to continue the story they started when they created Star Control II — The Ur-Quan Masters. «Happy days and jubilation!» «But wait!» «There is something wrong here... something which makes my sheath retract and my talons ooze.» «Please, Captain, we need your help!»

I think that it is actually very likely that these "Zoq" will be found infringing on SC2's copyright. Let's just count the similarities.

- They are called the Zoq, and they share their homeworld with other sapient races called the Fot, the Pik, and the Zebranky.- The Zebranky eat the Zoq.- The Zoq, the Fot, and the Pik all hate the Zebranky.- The Fot are one-eyed.- The Zoq, the Fot, and the Pik have a sport called Frungy, which is highly revered in their culture.

The differences are:- The Zoq, the Fot, and the Pik never banded together.- The Zebranky still survive.- Frungy is played by more races than just the Pik, and even the Zoq value the sport highly, rather than despise it.

The Zoq's appearance is clearly different from that of SC2's Zoq, but still reminiscent of them.

Perhaps if these similarities were taken individually, they would not count as copyright infringement. But taken together, I think it's as close as one can possibly get to infringement. And SCO already has a lot of elements that are clearly derived from SC2, the most obvious one being the appearance of hyperspace, the Precursors (who, like SC2's Precursors, are described as large, hairy quadrupeds) and the Maelnir (who, like the Melnorme, have a single trading ship in all supergiant systems - except one, I think, and are interested in buying alien lifeforms).

If the real creators are Accolade, or dozens of people who helped make the game, you could argue that they hold the Copyright. Not Paul and Fred.

A lot of the people who worked with F&P are still friends with them, and even if they weren't, it's not like they have any incentive to try and compete with the original project leaders over a story that all the employees recognized as F&P being the creators of.

Sort of a behind the scenes Metallica joke from the mid/late-90s where they were talking about how they should go on a "Serosis Tour". Where Kirk Hammet spelled it "s e r o s i s" and James Hetfield said they should keep it that way because it adds "mystique".Basically making fun of their reputation as alcoholics.

Pages 12-14 of Stardock's amended complaint have me concerned. Am I reading Paragraphs 40-44 correctly? It appears to me that Stardock is claiming that they already own Ur-Quan Masters.

Stardock has been asserting that they own all trademarks connected to the classic Star Control games since the lawsuit started. Their claim to The Ur-Quan Masters trademark actually sounds plausible, as The Ur-Quan Masters was the subtitle to SC2 back when the game was released, and the 1988 agreement specified quite explicitly that all trademarks connected to Star Control were Accolade's property. Still, Atari allowed this project to be published under the title The Ur-Quan Masters, even though they did not allow it to be published under the title of Star Control II. If Atari really owned both marks at the time (as Stardock claims), that at least implies that they were more willing to let the UQM mark go than they were willing to do the same with the SC mark (IANAL, though).

This new version of Stardock's complaint is notable in that it explicitly asserts that Accolade owned the trademarks to all the characters and alien names from the Star Control games. It also gives the reason why, as they allege, it was the individual authors who owned the copyright to SC1 and SC2, not just Fred and Paul - the authors didn't sign any contracts that transferred the copyright to Fred and Paul, and the copyright to the games was not registered until now (and even then F&P apparently encountered some problems with registering the copyrights, though I can't access the exhibits). However, the current entry for SC2 in the copyright catalog lists most of the people who worked on SC2 as "authors", and just Fred and Paul as "copyright claimants", and states that the copyright was transferred to them by "written agreement". So, even if Stardock's claims were previously true, are they still relevant today? I guess that F&P need to provide that written agreement as an exhibit. If Stardock won't take F&P's copyright claims to SC1 and SC2 more seriously after that, the court should (though again, IANAL).

As for F&P's counterclaim, I haven't yet noticed any significant differences between the current version of the counterclaim compared to the previous one.

They claim to own "the mark THE UR-QUAN MASTERS used in connection with STAR CONTROL II", and further provide prove by attaching a copy of the application form for the separate trademark application. They do not only claim ownership of the mark, but also "title and interest in and to the mark".They refer to Exhibit G to prove that the mark has been used in connection, and that therefore the mark is solely theirs.

In §41 they extend their claimed rights to trademarks to all "product names/titles, cover art, caharacters (e.g. aliens), alien race names, character names, spaceship names, originally adopted and used by Accolade, Atari and Stardock [...] such as PRECURSORS, FRUNGY, [....]"In §41, this claim is not based on trademark applications.

(How is Frungy a race name or character name or spaceship name?)

In §42 they affirm their ownership of trademark applications SUPER MELEE, UR-QUAN, and several other race and character (and corporation) names.Note, that this just affirms that they applied for trademarks, and own the trademark applications. Any decent attorney on the opposite side will just point to the not ownership of granted trademarks, but only owning trademark applications which have been contested and have not been granted yet, and therefore confer only very limited rights.

In §43 they state that FWIFFO, CHMMR and DRUUGE have been confirmed by the trademark office (USPTO) as having no conflicting third party prior rights noted in the examination to be cited against their application.

This leaves aside, that the USPTO basically only searches their own database for conflicting trademarks, or similar trademarks, and does only a very superficial search for other products with those names incldued. They do only a very limited online search for those names online, because online they might be used in a different field, and therefore not suitable to oppose a registryy of a trademark. The trademark examiners of the USPTO do not have the ability to check all open source projects or other uses if they are "similar" to the trademark application.They rely on third-party observations for this, or on someone filing an opposition against a granted trademark. [edit]

If the examining attorney finds no conflicting marks, but must write to the applicant about other matters, the examining attorney must inform the applicant that no conflicting marks have been found. This is commonly called the "search clause."

So, even if there are problems with an application, but just no conflicting mark (so "marks" which have never applied for registration), the USPTO employee must write the "search clause" stating that there are no conflicting marks.Furthermore, Internet citations used by the examining attorney are severely hampered by TMEP 710.01(b). And therefore (and for production requirements), internet searches are the corner examiners love cutting when they need to reach their production targets.Since I cannot look at the "Exhibits", I cannot see what else the Examining Attorney wrote, and if his report even includes a partial refusal under TMEP §718.02(a).[/edit]

In §44 they simply define "Stardock Marks" as including the registered trademarks (STARDOCK, STAR CONTROL) and the mass of trademark applications (e.g. THE UR-QUAN MASTERS, FRUNGY, CHMMR, TAALO,...) , therefore mixing it all up, and hoping that someone reading later paragraphs referring to "Stardock marks" confuses the stronger granted marks with the weak applications for marks. A judge reading this will note this, and consider "Stardock Marks" as unproven ownerships and contested, while they actually hope to make readers believe that all marks references with "Stardock marks" are granted and registered federal trademarks.They imply ownership, but actually it mostly includes "having filed for trademarks".

What concerns me much more, is that this amended complaint is attacking this project asfor this project dangerous are paragraphs §§105 following:

105. Upon information and belief, on August 1, 2002, Reiche and Ford released an open source edition of the source code for the 3DO version of Star Control II, which was and is still currently free to be used and redistributed by the public in a non-commercial context under a GNU General Public License (“GPL”). A true and correct copy of the GPL is attached hereto as Exhibit Y. The content (i.e., voiceovers, dialogue, graphics, sounds, and music) released in connection with the source code was and is still currently also free to be used and redistributed under the terms of the Creative Commons Attribution-NonCommercial-ShareAlike 2.5 license (“CC License”). A true and correct copy of the CC License is attached hereto as Exhibit Z.

106. Upon information and belief, Reiche’s and Ford’s release of the open source edition of the source code for Star Control II under the GPL and CC License was unauthorized and/or invalid because, as alleged herein, Reiche and Ford have failed to establish that they are the lawful owners of the copyrights incorporated in Star Control II. Thus, the GPL and the CC License are invalid and unenforceable, given that Reiche and Ford did not have the rights to license the copyrights within Star Control II, or otherwise, in the first place.

(highlighting done by me)

[edit]I am not a lawyer, nor do I have any rights to represent any applicants in legal procedures in the US.Therefore my rambling should be considered to be personal opinions and personal interpretations which may have no value for the reader.[/edit]

105. Upon information and belief, on August 1, 2002, Reiche and Ford released an open source edition of the source code for the 3DO version of Star Control II, which was and is still currently free to be used and redistributed by the public in a non-commercial context under a GNU General Public License (“GPL”). A true and correct copy of the GPL is attached hereto as Exhibit Y. The content (i.e., voiceovers, dialogue, graphics, sounds, and music) released in connection with the source code was and is still currently also free to be used and redistributed under the terms of the Creative Commons Attribution-NonCommercial-ShareAlike 2.5 license (“CC License”). A true and correct copy of the CC License is attached hereto as Exhibit Z.

106. Upon information and belief, Reiche’s and Ford’s release of the open source edition of the source code for Star Control II under the GPL and CC License was unauthorized and/or invalid because, as alleged herein, Reiche and Ford have failed to establish that they are the lawful owners of the copyrights incorporated in Star Control II. Thus, the GPL and the CC License are invalid and unenforceable, given that Reiche and Ford did not have the rights to license the copyrights within Star Control II, or otherwise, in the first place.

(highlighting done by me)

The scary thing is it is a valid possibility as Paul & Fred had obtained a number of copyrights from various parties in April as of this year, so in theory every last copyright holder could have submitted a DMCA take down request which would have essentially killed UQM until Fred & Paul had established they had ownership of the copyrights and/or obtained distribution licenses allowing for said copyrighted material to be included in the open source game release. At this point, it's just a theory on my part and we'll have to wait and see what the courts say.

The scary thing is it is a valid possibility as Paul & Fred had obtained a number of copyrights from various parties in April as of this year, so in theory every last copyright holder could have submitted a DMCA take down request which would have essentially killed UQM until Fred & Paul had established they had ownership of the copyrights and/or obtained distribution licenses allowing for said copyrighted material to be included in the open source game release. At this point, it's just a theory on my part and we'll have to wait and see what the courts say.

I think that the important part is that none of them did submit a DMCA notice for the UQM project, even if they could.

And if the current copyright registration for SC2 is valid, then none of this matters now (though again, if all of SC2's authors agreed to transfer the copyright to their material to Fred and Paul, this only confirms that the actual authors of the game see F&P's copyright claims as valid).

The scary thing is it is a valid possibility as Paul & Fred had obtained a number of copyrights from various parties in April as of this year, so in theory every last copyright holder could have submitted a DMCA take down request which would have essentially killed UQM until Fred & Paul had established they had ownership of the copyrights and/or obtained distribution licenses allowing for said copyrighted material to be included in the open source game release. At this point, it's just a theory on my part and we'll have to wait and see what the courts say.

I think that the important part is that none of them did submit a DMCA notice for the UQM project, even if they could.

And if the current copyright registration for SC2 is valid, then none of this matters now (though again, if all of SC2's authors agreed to transfer the copyright to their material to Fred and Paul, this only confirms that the actual authors of the game see F&P's copyright claims as valid).

It's not always as cut and dry as that, they may have extended a distribution license, they may have sold or surrendered the copyrights seeing them as not of high value to themselves, it's hard to say without getting the whole picture drawn out.

Paul and Fred are going to have to prove every scrap of copyrighted material is under their control to prove the open source license is valid either now or when possibly when released as open source. -- Yes ugly stuff, and no matter how much we scream on walls it'll come down to the court to determine everything.

Paul and Fred are going to have to prove every scrap of copyrighted material is under their control to prove the open source license is valid either now or when possibly when released as open source. -- Yes ugly stuff, and no matter how much we scream on walls it'll come down to the court to determine everything.

Is that actually the case? I would think the license is presumed valid until a copyright holder makes a claim against it. Since Stardock doesn't have any claim to the copyrights, and none of the original authors have ever opposed the project, it doesn't seem like there's any need for the court to make a ruling on that issue. It's not the business of the courts to go around enforcing other people's copyrights unprompted.

The trademark issue seems much more relevant, but it still seems like this mostly works against Stardock: if the trademarks are valid, UQM's use of them for 16 years seems like grounds to invalidate the trademark for failure to defend it. Even if P&F had "unclean hands" when they created the UQM, the current maintainers don't.

the 1988 agreement specified quite explicitly that all trademarks connected to Star Control were Accolade's property.

You're missing an important caveat: The 1988 agreement only says that for marks that were "used in the marketing of the Work". The alien names weren't used to market the game, and even the "Ur-Quan Masters" subtitle couldn't be seen until the consumer had already bought, installed, and started the game.